Barbara Ellestad’s November 20th article claiming that Judge Timothy Williams has ruled against the owners of the Wolf Creek Golf Course three times is, as usual, disingenuous and cynical.
Ellestad is putting her own spin on motions filed by Wolf Creek attorneys (as Plaintiffs) in processing their civil suit (A-18-774539-B) against the Virgin Valley Water District Board (VVWB) seeking to halt their restrictive pricing practices.
Her recent claims are disingenuous in that she is suggesting that the Judge made a substantial ruling in support of the VVWB and against Wolf Creek attorneys. In fact, the Judge simply held that the issues raised by the plaintiffs (Wolf Creek) should go to a jury to decide.
The Plaintiff’s case is simple enough. “Did the water board violate the good faith and dealing provisions required by Nevada contract law when insisting that Wolf Creek pay a 500 % increase for irrigation water”? Indeed, at one hearing, Judge Williams pointed out that the water district is a political subdivision of the State of Nevada and had to act both in good faith and without being arbitrary and capricious. “They do not have a right to do whatever they want,” the Judge said.
Further, the Water Board has ignored Nevada’s Administrative Procedures Act (APA) when setting regulations such as price setting. The APA is a process designed to protect the public against violations of the “due process” clause of the 14th Amendment to the U.S. Constitution.
Arguably, the case law concerning good faith contracting supports the plaintiff as does the obvious violation of the APA regulatory process. With no case to argue, the water board used public dollars to pay attorney Jedediah (Bo) Bingham of Bingham Snow and Caldwell to file misleading motions and collaborate with Ellestad to assassinate the character of the owners of Wolf Creek, and others who question the veracity of Bingham’s arguments.
Remember this case is about “good faith” contracting, but because it involves decisions to set water rates Bingham is forced to defend, not the public, but those members of the VVWB who, as shareholders of irrigation water, who set irrigation water rates that advantage themselves or individuals which whom they have a relationship.
When Wolf Creek attorneys took depositions from Virgin Valley Water District Manager Kevin Brown and Mesquite Irrigation Company (MIC) President Kelby Hughes, they found that their statements contradicted statements made to the court by Bingham. Then on May 7th, Bingham typed up a declaration from Kenyon Leavitt, a former member of the Board in which Leavitt made unsubstantiated claims about water rates and pressure from the owner of Wolf Creek to lower rates. Leavitt withdrew those comments in another declaration taken on October 2nd by the attorney for Wolf Creek.
When the Wolf Creek attorney asked Leavitt if he ever told anyone that the Water Board would have a sole and absolute distraction to change the rate in the future to the SNWA lease rate? Leavitt said “no” and admitted that, at that time, it did not occur to him that the local businesses would be forced to pay the SNWA rate.
Contradictions in comments made by Bingham to the court along with continued changes in his defense strategy, and Bingham’s use of Ellestad to push arguably false narratives to the public caused the attorneys for Wolf Creek to file a motion asking the Judge to end the charade.
On September 25th Clifford Gravett stood before Las Vegas (NV) District Judge Timothy Williams to defend Bingham from charges that he had engaged in “willful unlawful acts” with “ulterior motives,” and therefore he is abusing the legal process by submitting factually challenged declarations from “witnesses” in the civil suit and that Bingham was coordinating with Ellestad, to, among other things, disparage Cory Clemetson, an owner of Wolf Creek and others in the local Mesquite press.
Ellestad is correct in saying that the Judge dismissed the motion but is wrong in inferring that it was somehow bad for the Wolf Creek case. It is not.
As Andrew Davey reported in Nevada-today, Judge Williams argued that “Just because you have factual disputes, that doesn’t rise to abuse of process.” However, he allowed the allegations of abuse of process and the veracity of the witnesses to be presented to a jury to decide.
As Davey reported, Judge Williams was not going to dictate what attorneys say to the media. Indeed, the Judge pointed out that under U.S. law, many falsehoods—even some deliberate lies—receive the full protection of the First Amendment. That is true even though “there is no constitutional value in false statements of fact,” as Justice Lewis Powell Jr. wrote for the Supreme Court in 1974. Nonetheless, the Courts have often refused to allow governments to penalize speakers for mistakes, sloppy falsehoods, and lies.
Perhaps attorneys for Paradise Canyon knew that the Judge would not overrule Bingham’s use of yellow journalism in the case or the introduction of questionable testimony. It is also likely that they knew the Judge would leave questions of Bingham’s possible use of tainted testimony to a jury. Their intent was more likely to put into the record just how low an attorney and the VVWB will go when challenged by a superior force.